CORPORATE RESPONSIBILITY:
FILLING THE GAPS IN INTERNATIONAL LAW
Pablo Zapatero
1. The social meaning of a word
In the beginning was the word. There was talk about “bussiness ethics” and then also
about “corporate social responsibility”, which started to shift to “corporate
responsibility”, pushed by the contribution of progressive advocacy. Today, one of the
most challenging questions regarding global governance is how broad we define its
dynamic content: a socially consolidating concept that could imply a historical
configuration of the way we approach the relationship between corporations and
society, as well as between markets and public institutions. The social implications
regarding expectations of “corporate responsibility” on the political agenda are
unforeseeable. The concept reaches its social critical point in a vital historical moment
in which society tries to formulate new triumphs to confront new powers: the victory of
the market economy and its managed internationalization in a scenario of diminishing
social protection and private concentration of power worldwide. A new reality in which
private organizations exercise private power in coexistence with the exercise of public
power by states and international organizations mechanically shifts responsibilities (i.e:
realization of certain rights) to the private sector. International law has a key role to play
in providing reasoned solutions under this scenario and to specify the degree of
corporate involvement in the protection and promotion of public values.
Multiples puzzling questions emerge in relation with corporate responsibility. Society,
politicians and the researchers have to leave space for creativity to craft new models on
the public and private regulation of corporate responsibility: The social construct of the
corporate responsibility scheme undoubtly undoubtedly embraces human rights as well
as (socially uncontested) labour standards and the protection of the environment
(sustainable development and human rights). The specification of these rules is no
doubt challenging in itself (i.e: the horizontal application of human rights law). The
legal obligations of private parties in the enjoyment and realization of human rights
(civil and political rights as well as social, economic and cultural rights contained in the
Universal Declaration and the international covenants) is particularly difficult to specify
in private spheres. Additionally, defining how legislators and regulators approach the
interaction between corporate behaviour and human rights is a complex and

Professor of international law at Universidad Carlos III de Madrid (pablo.zapatero@uc3m.es).
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controversial process if one considers the following: The internalisation of the mandate
of universality and interdependence of all human rights; and the inevitable expansion of
the corporate responsibility discourse to embrace a plurality of other critical social
issues such as corporate tax evasion or certain unsustainable modes in corporate
downsizing amongst others. The dynamics of a concept like corporate responsibility is
not different to other rising ideas that capture changing social values: Once they capture
social demands (with relative precision) they enter and re-enter the dynamic public
decision making process to define new public legal rules.
2. The tools of international law
International law has been and still is intensely state-centred. However, corporate
activity is becoming increasingly more global and corporations are growing in power
and gaining more influence on world society. This fact inevitably sets new challenges
for international law and its institutional architecture. Although international law
establishes legal obligations on individuals, these obligations have historically been
applied to private parties in a rather limited and unsystematic way, not to mention to
private legal persons, which have been mainly irrelevant to (public) international law. In
this sense, the realities of a maze of very complex processes of market
internationalization and economic transactions are challenging the foundations of
conventional legal theories; the foundations of the way we see and approach
international law. As a result, some underpinnings of classical theory of human rights
have become a reductionist rationality (i.e: human rights as primary responsibility of
states). The same applies to the conventional theories of international subjectivity (i.e:
de facto corporate influence in contemporary international legislation). These are not
mere examples, but critical factors. There are some “legal mantras” repeated by a
significant part of the international legal community (practitioners and researchers) that
have to be re-examined. The subsequent question is easy to make and difficult to
answer: Is international law ready for a revolutionary change in the ways it approaches
world governance? A positive answer to this question would imply an unprecedented
and historical political shift in the global political community.
3.Basic models and strategies
Multilateral approaches through international law are still underdeveloped in this field.
International society faces new realities in which new global centres of power are
derived from (a) a sustained process of private accumulation of capital (facilitated by
the instrumental foundation and development of the corporate form and structure) and
(b) the expansion of the internationalization of markets. However, presently
international law lacks the tools required to provide solutions to problems originating
from this world scenario: Nowadays, global governance is basically fuelled by a
plurality of dispersed international institutions (generally with limited regulatory
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capabilities) that monitor the compliance of standards directly and primarily applied to
states. As a consequence there are some legal and institutional changes that have to be
devised. Law, as we understand it, is an instrument of power as well as an instrument to
constrain power. Therefore there are two simple basic models to explore and combine:
(A)
(B)
To employ strategically conventional legal theory and tools to approach the
new challenges (Model A) or
To reformulate or re-engineer rules in force in order to devise and construct
new institutions to face these new realities (Model B).
Model A would imply a focus on a strategy mainly based on manipulating segments of
International Law already in force: Progressive legal practitioners and corporate
responsibility advocates in civil society have been pushing this agenda through strategic
public interest lawyering and campaigning in domestic tribunals in western societies. To
do this, they employ social “brake levers” such as the Universal Declaration and
treaties, as well as domestic laws with extraterritorial scope. A clear-cut example can be
seen in the fact that for some time part of international legal literature has questioned
the exportation of human rights to horizontal relationships among private parties
(private person vs. private person, legal person vs. private person, legal person vs. legal
person). However, this transnational epistemic community has been advancing its
agenda, increasing supporters in the legal community and operating through the
dissemination of progressive re-readings and strategic interpretations of international
law. This approach is key and instrumental to advance the corporate responsibility
agenda on a global level in the short and medium term. However, it has critical
structural limitations:

International law contains general substantive rules -i.e: the prohibition of
torture- which arguably could be opposed to corporations (rules contained in
Treaties and the Universal Declaration) in a domestic judicial proceeding
(progressive lawyering): However, the facts teach us that these type of legal cases
are not normally won in court but through the “stochastic court of public opinion”,
which undoubtedly affects reputation (moral and reputational sanctions through the
publicity of lawsuits) but does not provide any compensation to the victims of
corporate misconduct and leaves externalities unattended.

These international rules were not crafted and designed to regulate corporate
conduct (diverging object of regulation) but state conduct: As a result critical
practical problems inevitably break out in the specification of these rules (problems
of generality and indeterminacy) in relation to private activity (i.e: the right to health
in relation to private pharmaceutical research and patentability). These rules are
generally static and have wide grey areas which lack of regulatory guidance
mechanisms to support specification (i.e: direct violation or complicity with
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violations of human rights).

These international rules contain a weak institutional design which does not
provide for mechanisms to sanction and enforce corporate infringement (gap of
international corporate liability) at the international level (enforceability of
international law). The effectiveness of these international rules in relation to the
state has severe flaws. Moreover, this is even more accentuated in relation to
subjects which were not considered at the time the drafting of these rules was done.
In this sense, there are critical flaws in terms of compliance, regulatory screening
and infringement disclosure (panoptic audit design1) and there is a clear need to
deploy and enhance compliance mechanisms.
These issues are critical for effective practice of corporate responsibility in international
law and movement towards a more complex and intense international regulatory
intervention (Model B). For this reason it is necessary to construct positive New Rules
of the Game for global corporate activities in the long term and to back those rules with
new institutions. It should be reasonable to consider legislative drafting to adapt and
specify human rights and other relevant fields of international law already in force in a
newly designed dynamic international regime (capable of developing and adapting new
rules in an open regulatory learning process) directed to establish the boundaries of
global corporate responsibility. This strategy could be implemented through a new
brand of institution or designing legal upgrades in pre-existing institutions (i.e: UN,
WTO, IMF and World Bank). A complementary sound policy appears to be to settle and
reinforce inter-institutional coordination (a multi-institutional stakeholder approach2) in
this field. The case for this type or regulatory coordination among international
organizations is not only circumscribed to corporate responsibility but many fields of
regulation as well. International law is a body of rules composed by different
building-blocks that take different directions which can create legal frictions (i.e: trade
liberalization and the environment). International law is fragmented in a plurality of
international regimes with diverging objects and purposes and with no formal horizontal
coordination among them. Specialized and sector-based international legislation has
created diverging regulatory inputs. As a result, treaty relations and interactions entail
complex problems which cannot be solved by applying the traditional rules of conflict
in international law (i.e.: right to health vs. international intellectual property
protection). Therefore it is of key importance to deepen inter-institutional coordination
in international law.
The rational design of new rules should focus on bargaining and inserting a balance
under the master value of granting Rights in exchange for Obligations. To arrive at this
trade-off and to settle it in legal terms would inevitably require to some extent involving
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2
Work in process.
Work in process.
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multinational corporations in the process. This would also inhibit the practice of
corporate captures and pressures on key player governmental bodies (revolving doors,
business self-contained cultural immersions, etc.). The internal structures of several key
public organizations are constrained to different degrees and intensities by the proxies
of regulatory corporate captures. These captures do not make it easy to promote
progressive international legislation. The avenue therefore, is a Package Deal
negotiated and crafted with the involvement not only of states and international
institutions but multinational corporations, and subsequently legalized by states (in
international and domestic law) and complementarily enforced through strategically
selected financial entities (financial markets and banks). The path of linking corporate
rights to corporate obligations, interpreted in a wide sense (i.e: trading and legal
procedural benefits linked to a precisely predefined rules on corporate behaviour), is a
promising and under-theorized avenue in this field. Under this scheme, international
legislation towards binding rules could focus in a double regulatory strategy:
Rights and obligations
1. International legislation establishing rights for companies (facilitation of
economic transactions and legal guaranties)
2. International legislation establishing corporate obligations
Procedural mechanisms
3. International procedures to enforce those rights
4. International procedures to enforce those obligations
However, it is fair to conclude that in 2004 the corporate rights approach is much in
force (rights-indirectly obtained by the proxy of states: i.e: WTO rules and concessions,
bilateral investment treaties, etc.), whereas none or almost no rules on international
corporate obligations and liabilities. The OECD’s failed Multilateral Agreement on
Investment (MAI) and the WTO TRIPS agreement already in force are paradigmatic
examples of these imbalanced legislative processes; processes in which multinational
corporations obtain triumphs through key states acting as proxies. Rules concerning
international responsibility of States have been negotiated for more than 50 years in the
UN International Law Commission and there are multiple specialized international legal
schemes that regulate to different extents the international responsibility of the state. It
is reasonable to assume that it is time to develop rules in this field for corporate actors
as well, from the wide angle of responsibility as well as from the narrow angle of
liability.
This panorama does not imply, however, a lack of international regulatory advances in
terms of corporate responsibility. Nowadays, there is a growing and wide variety of
regulatory projects underway in this field within the international community.
Unfortunately, all of them are of a non-binding nature, based on self-regulation and
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corporate voluntarism (ironically “mimicking” the state consent approach in
international law production) with no enforcement mechanism (as understood in a
technical acception) in place, and not even planned in the future. Consequently, these
projects do not provide the regulatory public goods required to solve the imbalances of
control between private power on one side and citizens on the other.
There have been some public efforts to regulate corporate responsibility in the past (i.e:
UN Commission on Transnational Corporations 1974-1990) and there are some that are
already in place. ILO Tripartite Declaration of Principles Concerning Multinational
Enterprises and the OECD Guidelines for Multinational Enterprises are arguably the
first general regulatory steps and main institutional expressions of the value of corporate
responsibility in international society. The specialized “applier communities” of these
international instruments are and have been strongly trying to upgrade them by different
means. Likewise, a UN specialized agency (ECOSOC) has pushed for UN Norms on
Responsibilities of Transnational corporations (crafted by a working group of the UN
Sub-commission on the Promotion and Protection of Human Rights). The Norms are a
last and additional critical step. But acting as the devil’s advocate one should say, after
all the drafting process, that perhaps it has not been the best of ideas to approach the
issue in a single working group. This group has proceeded through a round of meetings,
without sufficient intervention of affected stakeholders and lacking certain social
science technologies instrumental to law and rule design. Deriving problems of
regulatory complexity as well as the problem of institutional enforcement gaps can be
overcome through a dynamic regulatory process in the medium and long term, perhaps
through a framework treaty as has been proposed. If this is the case, it should provide
the mechanisms to moor additional protocols in order to provide the required
progressive regulatory learning and updates.
The growth or new centres of private power in global governance requires not a
redesign, not a reinvention, but the incorporation of a second pier in the architecture of
modern international law. The architectural analogy would never be more pertinent: the
international law construct can advance the corporate responsibility agenda through
adding tiers, new levels built on pre-existing ones or building entirely new piers in
parallel to complement that construct. This architecture of international law has been
mainly and basically focused on regulating the behaviour of public entities (state actors)
since its recent conception five centuries ago (as shared rules of interaction among
political communities). Nowadays the central critical task is to fill the gaps of the
international legal system: the gaps in international law understood as a legal system. If
international legislation does not proceed in this track, inevitably, international law -as a
central tool of global public policy- will mutate towards imbalance (subjects not
covered by law) while foreseably private powers will keep on permeating and capturing
the structures of international law in order to improve and develop rather different
public agendas based on special interest. The advance of the empire of international
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law, or if we wish, the advance of the international empire of the law is desperately
needed for these up-grades. Not to ignore that the international regulatory program of
corporate responsibility contains a complex cluster of technical and political tasks that
cannot predictably be concluded soon, not even in a decade of future feasible
developments in international legislation (i.e: the specification of corporate obligation in
terms of human rights). To craft new international rules and institutions for corporate
conduct takes time. However, the success of this regulatory journey would be
undoubtedly revolutionary for international law.
4.Private additional regulatory avenues
In the meantime, while cosmopolitan civil society and politicians promote the
development and design of new effective and reasonable rules and institutions to deal
with the social, economic and technological changes of globalization, complementary
corporate approaches are required through self-policing and self-regulatory initiatives
through private auditing and certification, private regulation through contracts and
creative and future private regulatory markets (markets as regulators 3 ). The first
generation of private international business regulation through codes of conduct has
passed by (first generation regulatory tools of corporate responsibility). Codes of
conduct remain useful in corporate responsibility strategy as central by-laws and
protocols to inform corporate officials of the behaviours expected, promoted, controlled,
applied and centrally enforced at the apex of global corporate headquarters by advanced
strategic boards of directors. The private regulatory road ahead involves crystallising
international standardisation on corporate responsibility (coordinated strategies of
international and national standarization agencies). The establishment of international
private standards is key to global corporate governance building; a path in which
modern corporations developing progressive corporate cultures should have a critical
positive voice and role to play. These types of international (i.e: ISO) and national
private standards (i.e: Chinese SAC, US ANSI or European CEN) could be instrumental
to advance international corporate responsibility through private standardisation (private
soft-law). This strategy can have a prominent relevance due to the fact that these
standardisation programs can be reinforced through incorporation by reference in
international law (i.e: WTO law on technical rules and standards) and domestic law (i.e:
domestic market law and regulation).
The governance opportunities are not marginal, particularly if noticing that efficient,
reasonable and precisely drafted soft-law is in many occasions not less than premature
law and as such enjoys some probability ratios of future transformation in (domestic or
international) law in a positive policy scenario. The fact is that the rules of the French
Declaration of the Rights of Man (1789) and the Universal Declaration of Human
3
Work in process.
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Rights (1948) are, in their own right, possibly the best examples of these types of social
regulatory progress. In common policy scenarios, soft-law can at least contribute to the
polinization of law through transcription, direct transplant or incorporations by
reference like legalization or semi-legalization. Therefore it should not be
underestimated as a feasible experimental and exploratory starting point in the
regulatory process.
5. The internationalisation of domestic strategies
The strengthening of responsible business governance in the global arena demands
effective domestic legal regimes as a pre-requisite. However, domestic legal systems
and regulations do not always correct the externalities and negative impacts of corporate
conduct in society. As a matter of fact, most host and home states receiving direct
foreign investment have well-known and understandable difficulties (“sticky” relative
mobility) to apply and impose new unilaterally defined laws and regulations to
corporations (regulatory competition for FDI). These are however the possible avenues:
1. Domestic territorial law and regulation
2. Domestic extraterritorial law and regulation
3. International coordination of domestic (territorial and extraterritorial) laws and
regulations
Domestic strategies concerning corporate responsibility require upgrading domestic
corporate law and regulation, plus some minimally invasive legal surgery and reform on
other related sectors. Although this is not the theme-focus of this brief paper, three
tentative comments have to be called to attention and underlined in relation to domestic
law and regulation due to their potential international functions (and impacts):
(1) There are certainly prominent avenues to manage corporate responsibility through
state power: However the availability of this approach depends on the economic
dimensions of the market operating in the territory of the State at stake. This refers to
state power over access to markets (i.e: Chinese market). US, UE or China have more
leverage to proceed in this alternative regulatory path than others. A relevant example
would be the employment of securities markets as a key regulatory field to improve
worldwide corporate responsibility through crosss-conditional listing standards and
requirements. A responsive regulation on market access is a cost-effective mean to
retrace costly regulatory policies and resources based on direct control and intervention
on actors (regulated subjets) in the market.
(2) The extraterritorial application of domestic law is an available complementary
regulatory path. The use of this state regulatory option is capable of producing clear
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positive changes and impacts on corporate behaviour. However, it produces some
relevant flaws derived from the fact that it erodes legal security and predictability in
international economic transactions as well as relevant dilemmas in terms of
paternalism, moral absolutism and institutional legitimacy. Arguably it is a third or
fourth best in the path towards international binding legislation. But it is the closest
regulatory power to nuclear power, with all the derived flaws.
(3) Additional techniques to consider in this field are the concerted state coordination of
exercises of (prescriptive and adjudicative) territorial jurisdiction. At the same time, the
coordination of a plurality of dispersed extraterritorial laws and regulations
(coordinating extraterritorialities through multi-jurisdictional solutions) could foster
corporate responsibility. These techniques would mitigate the inter-state political
frictions resulting from the use of extraterritoriality and could reverse the negative
effects of unilateral extraterritoriality towards a positive colective result. Arguably, this
approach should be coordinated by an international organization and would open an
almost virgin regulatory field (excepting fragmented arrangements concerning
extraterritoriality in competition policy) to explore in search for corporate responsibility
as well as other international public policies (crossed concerted bilateral or multilateral
extraterritoriality).
6. Hybridity: Dreaming up new rules and institutions
Current provisions in the law of market economy internationalization result in de facto
limitations and exclusions of regulatory tools derived of the colective experience and
practice of regulation (i.e: ¿production and process measures?). Therefore, short term
gap filling in the law of international corporate responsibility would need to concentrate
on realistic assumptions. Fortunately, regulation, arguably law being one of its basic
manifestations, is not only about sanctions and penalties but about incentives and
information as well as an abundance of other tools to plan and construct through
creative design in order to guide the conduct of the regulated subject.
As a result, the challenge of regulating global corporate responsibility is not merely
about international law, domestic laws and private regulation. There are many
complementary regulatory techniques available. Some of whom are un-explored
avenues for hybridity. There is a bigger picture which is about constructing wider global
regulatory linkages. International legal structures have been described as a deep
multi-layered network of interacting institutions and rules. The global architecture of
business governance has to be put in place through a deepening of this network.
Consequently, it will need new forms of global regulatory cooperation and coordination
between a combination of public authorities as well as private forms of governance.
These are rather unexplored regulatory paths in conventional compartmentalised social
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sciences and an under-theorized and practiced transdisciplinary new field for social
guidance through norms. As a result, there are challenging paths to map. Personally, I
would suggest to promote (1) the regulatory avenue of exercising public power over
access to markets (domestic, multilateral and regional trade regimes) and finance and
(2) the regulatory avenue of the systemic change in international law structures:
With regard the former, its reasonable to consider that the public strategy of market
demand in inter-state negotiation (international trade liberalization) has to be
complemented by the public strategy of market offer to the world bussiness community
(offer of market access in exchange of compromises and obligations). This could be a
key piece of the puzzle in governing globalization. This new governance architecture
has to be progressibly erected by inventing, deploying and employing new intellectual
multidisciplinary technologies.
With regard the latter, it is fair to say that there is a need to craft feasable new public
and social structures to advance towards an effective alternative global regulatory
framework. Under this scheme,
public
(states) and private (corporations)
participation and benefits from international regimes as IMF, WTO, World Bank, as well
as other private regimes (financial markets, banks, etc.), should be conditional
(strategical and fragmented conditionality4) to a Global Package Deal. This New Deal
would have to incorporate corporate responsibility, amongst other master values: There
is a critical need to develop alternative forms of world constitutionalization. These ideas
may be called mere utopias. Some definitively are and perhaps will always be. But we
have to recall utopias are on ocassions only premature truths, and also to ascertain that
the shaping of society is only limited by its own deegree of political involvement.
7.Evolving prescriptions and the next Chinese model
Now that some of the key points on this issue have been presented, it is time to link
these questions to China, a state which is constructing its economic model mediating
between a planned economy and a market economy. As a growing economic power, the
starting point of the Chinese communist model has a historic opportunity to transfer
towards a reformulated up-graded third model: to advance redistribution, welfare and
freedom though embracing the key underlying structures of market economy and the
empire of law in a progressive process of democratization. The unaccountable
neoliberal experiment of the USSR transition has had extreme and unpredictable
(present and future) consequences on the Russian political system and economy as well
as critical negative spill-over effects on neighbour nations and states. The Chinese
4
Work in process.
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government can migrate to a sound economic and democratic system without making
those main errors. Here, corporate responsibility could play a key role if China develops
advanced alternative domestic laws and regulations on corporate responsibility. In this
sense, China, being a country rooted in a different economic model, institutions and
culture, has a tabula rasa -clean slate- opportunity to develop a new corporate
responsibility model based. In this context, China has strong opportunities ahead as a
growing market in which advanced ideas and theories of corporate responsibility can be
implemented free from existing limitations in traditional western market legal and
regulatory structures.
China has become a leading economy of the world which builds on a ancient culture
and a communist system in transformation. It could also become a future leading nation
as well, in social and democratic terms, if it takes serious steps towards institutional
learning and exploration on up-grading western laws and regulations on market
economy and avoiding unsound legal transplants and economic models. The still
embryonic content and idea of corporate responsibility should clearly be considered as
part of the cornerstone of a viable strategy. The Chinese economic model of “One
country, two systems” will progressively evolve to a relatively unified economic
system. The way China bridges those two systems (centrally planned economy and
market economy) and those two underlying political philosophies towards a new model
is a world historic opportunity to safeguard economic diversity in the world and perhaps
to complete and up-grade the western market economy model. Will this perhaps become
a future change in the world as we know it?.
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